Sermon: Being radical. Like the Rabbis

Written by Rabbi Josh Levy — 18 July 2015

The rabbis did not like the death penalty.

When they read this week’s portion of Torah, they often, as Jonina did, focussed on the good progressive bits: the cities of refuge which answered a problem of the ancient near east, that of blood vengeance; the insistence on a trial in capital cases.

The fact that the Torah portion clearly and explicitly commands the execution of a murderer?  That they emphasised just a little bit less.

In fact, they didn’t just de-emphasise it, they downright subverted it.  Using every halachic tool at their disposal, they sought to remove this mitzvah from the rule book.  To such an extent that while the Torah commands the execution of people for 36 different offences, including religious crimes, the Mishnah tells us that:
“A Sanhedrin (a court) that executes one person in seven years is called bloodthirsty.”
Indeed according to Rabbi Eliezer ben Azariah the figure is once in seventy years. And Rabbi Tarfon and Rabbi Akiva stated, “If we had been members of the Sanhedrin, no-one would ever have been put to death”.

That the rabbis were willing to make such a shift is extraordinary.  Because, this was an explicit instruction from God.  To the rabbis, Torah was a clear articulation of divine will. And yet, within the first generations of rabbinic Judaism, the values that the rabbis brought to their religious lives came to supersede the explicit instruction of Torah.  The rabbis, or at least the majority of them, understood that their social and ethical context had changed, and ki v’yachol – if you can say such a thing – they overruled God.

This is not the only example of places in which the rabbis were willing to overturn the word of Torah.
So, in Deuteronomy, God commands – not suggests – commands, that when a body is found, killed, out in the fields, and it is not clear who committed the murder, then the elders of the nearest town will sacrifice a heifer, whilst reciting a special formula to absolve them of bloodguilt.
And yet, the Mishnah tells us,
“When murderers became many, the ceremony of breaking a calf’s neck was discontinued.”

Numbers describes the Sotah ritual, a strange and quite extraordinarily unpleasant ritual which was inflicted on a woman suspected of adultery.  The ritual begins with the words “God spoke to Moses saying, tell the people…”
Yet according to the same Mishnah, “When adulterers became many, the ceremony of the bitter water was discontinued”.  The explicit word of God was discontinued.

And, the Mishnah tells us, “It was Rabban Yochanan ben Zakkai who discontinued it”.  That is, it happened in the very earliest layer of the rabbinic period, when the priesthood which was to carry out these rituals was still in existence, the Temple most likely still stood.

Interestingly, in both these cases, the driver of change is what is known as shinui ha-ittim – changing times.
The social context had evolved, or maybe devolved, to such an extent that the commandments of God no longer applied.

Another area in which the rabbis utterly subverted Torah in response to changing social context was questions of status.  In biblical times, status was a straightforward affair.  Israelite status belonged to Israelite men, or to those attached to the household of an Israelite man through birth or marriage.  While a non-Israelite woman could join people Israel through marriage, there was no mechanism by which a non-Israelite man could become Israelite.  Such a person could live among the people, protected by the same Israelite law, but would always remain in a different category: the ger, or stranger.

This model sufficed in the geographically and socially narrow context of the tribal life of Ancient Israel.  However, by the period of the rabbis, when Israelite cultic life had transformed into a distinctive Judaism which existed beyond national borders, with significant interaction between Jews and non-Jews, new mechanisms were needed to answer new questions.  What was the status of the child of a Jewish woman and a Roman man?  What was the entitlement of the child of a Jewish householder and his gentile slave?  What to do with those non-Jews who were attracted to the ritual and values of Jewish life?

In response to these new realities, the new complexity in social interaction and the meaning of Jewishness, the rabbis took Judaism through two radical shifts.  The first was to introduce a mechanism by which a non-Jew could, independently, become Jewish – that which we now call conversion.

The other radical shift was to introduce a matrilineal principle.  First found in the Mishnah, this new model asserted that while Jewish status would follow the male line in straightforward cases, where there was complexity, status would follow the mother.  This was a radical and utter subversion of the patrilineal model of Israelite status found in biblical texts.  In introducing this transformation, the rabbis were most heavily influenced by the models of status law that they saw around them.  And so, it came to be the case that Jewish law contained a matrilineal principle taken almost verbatim from Roman status law.

This was radical.  Subversive even. The Jerusalem Talmud even tells of a sage, Jacob of Kefar Neburya, who tried to assert biblical status law in a case, quoting Torah as proof – and was whipped by the rabbis for his trouble.  For doing what the Torah says.

I am not going to talk about status decisions, specifically, though clearly this is at the forefront of my mind this Shabbat.

Rather, there is a question here about authority, about change in our tradition.
If the rabbis were willing to be so subversive, why was there not more radical change in Jewish legal history, why do we feel so scared of the kind of change that we might know is right in response to our social context?

The rabbis did not feel paralysis, even in the face of divine commandment, so why do we?

One answer is a Talmudic, halachic, concept which is remarkably little known about, but is hugely important.  It is one of the most problematic and damaging concepts in Jewish tradition: yeridat hadorot – decline of the generations.

It finds its clearest expression in the Babylonian Talmud, where Rabbi Zera states: “If the earlier scholars were sons of angels, we are sons of men; if the earlier ones were sons of men, then we are like donkeys”.

Or in the Yerushalmi, the Jerusalem Talmud, where Rabbi Ishmael the son of Rabbi Yose says: the difference between our generation and the one before “is just like the difference between gold and dirt”.

In essence, there is an idea that the early rabbis were spiritually, religiously, superior to all who came after them.  They had a special character which meant that they were able to make determinations in matters of Jewish law which would be binding upon all subsequent generations.  They, and they alone, had the authority to make the kinds of changes that I’ve described, and having done so, their rulings are authoritative. Forever.

As generations pass, as we move further away from those early rabbis, so we see a decline in wisdom, a decline in insight, a decline in learning, which makes us utterly bound to obey that which comes before.

It is a challenging idea – an idea that, even when it is not articulated explicitly, has come to dominate much of Orthodox and Masorti thinking about authority and Jewish law.  Responses to the Assembly position paper released this week have not been to question the merits of the detail but to question our right to change.  They are questions of authority.

But why do we not have that authority?
Yeridat HaDorot is a challenging idea – and it is not, I think, true.
If anything, I would want to argue the opposite – that we are capable of progress, of heightened understanding, of greater knowledge about the world.  Our learning, our reason, our continued dialectic, our science – through these we can come to better understand that which Torah wants of us, our place in the world, not only through engagement with the text.

Thirty something years ago, Rabbi Tony Bayfield attempted to define guidelines for the development of halachah in Reform Judaism.  Among his principles was to recognise that “the past was not necessarily better, maybe just different”.

If this is true – and it is – we are no less entitled to respond to the changing social context in which we live than were the rabbis who lived 2000 years ago to their social context.  In fact, just as they felt the duty to do so, so should we.

The rabbis did not like the death penalty. It did not reflect their values.  And so they rejected it.
The rabbis did not believe in continuing out of date rituals. So they stopped doing them.
The rabbis did not believe in enforcing a status model that did not meet their social context. So, they changed it.

And so, too, we can change.
We must do so thoughtfully, carefully – as they did.
We must do so with love and learning and study and argument – as they did.
We must ensure that we are not superseding Torah – widely defined – but grounding our practice within it.
We must never change for its own sake.

But change we must.  Because moving on, responding to what is happening in our social context, ensuring that Judaism works for all for now.
That does not make us inauthentic – it is what makes us the heirs to the rabbis.